S.B. No. 1693
AN ACT
relating to the regulation of poultry facilities and poultry litter
by the State Soil and Water Conservation Board and to the
enforcement authority of the Texas Commission on Environmental
Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 382, Health and Safety
Code, is amended by adding Section 382.068 to read as follows:
Sec. 382.068. POULTRY FACILITY ODOR; RESPONSE TO
COMPLAINTS. (a) In this section, "poultry facility" and "poultry
litter" have the meanings assigned by Section 26.301, Water Code.
(b) The commission shall respond and investigate not later
than 18 hours after receiving:
(1) a second complaint against a poultry facility
concerning odor associated with:
(A) the facility; or
(B) the application of poultry litter to land by
the poultry facility; or
(2) a complaint concerning odor from a poultry
facility at which the commission has substantiated odor nuisance
conditions in the previous 12 months.
(c) If after the investigation the commission determines
that a poultry facility is violating the terms of its air quality
authorization or is creating a nuisance, the commission shall issue
a notice of violation.
(d) The commission by rule or order shall require the owner
or operator of a poultry facility for which the commission has
issued three notices of violation under this section during a
12-month period to enter into a comprehensive compliance agreement
with the commission. The compliance agreement must include an odor
control plan that the executive director determines is sufficient
to control odors.
(e) The owner or operator of a new poultry facility shall
complete a poultry facility training course on the prevention of
poultry facility odor nuisances from the poultry science unit of
the Texas AgriLife Extension Service not later than the 90th day
after the date the facility first accepts poultry to raise. The
owner or operator of a new poultry facility shall maintain records
of the training and make the records available to the commission for
inspection.
(f) The poultry science unit of the Texas AgriLife Extension
Service may charge an owner or operator of a poultry facility a
training fee to offset the direct cost of providing the training.
SECTION 2. Section 26.302, Water Code, is amended by adding
Subsections (b-2) and (b-3) to read as follows:
(b-2) The State Soil and Water Conservation Board in
consultation with the Texas Commission on Environmental Quality by
rule shall establish criteria to determine the geographic,
seasonal, and agronomic factors that the board will consider to
determine whether a persistent nuisance odor condition is likely to
occur when assessing the siting and construction of new poultry
facilities.
(b-3) The State Soil and Water Conservation Board may not
certify a water quality management plan for a poultry facility
located less than one-half of one mile from a business, off-site
permanently inhabited residence, or place of worship if the
presence of the facility is likely to create a persistent odor
nuisance for such neighbors, unless the poultry facility provides
an odor control plan the executive director determines is
sufficient to control odors. This subsection does not apply to:
(1) a revision of a previously certified and existing
water quality management plan unless the revision is necessary
because of an increase in poultry production of greater than 50
percent than the amount included in the existing certified water
quality management plan for the facility; or
(2) any poultry facility located more than one-half of
one mile from a surrounding business, permanently inhabited
off-site residence, or place of worship established before the date
of construction of the poultry facility.
SECTION 3. Subchapter H, Chapter 26, Water Code, is amended
by adding Sections 26.304 and 26.305 to read as follows:
Sec. 26.304. RECORDS OF SALE, PURCHASE, TRANSFER, OR
APPLICATION OF POULTRY LITTER. (a) A poultry facility that sells
or transfers poultry litter for off-site application must maintain
until the second anniversary of the date of sale or transfer a
record regarding:
(1) the identity of the purchaser or applicator;
(2) the physical destination of the poultry litter
identified by the purchaser or transferee;
(3) the date the poultry litter was removed from the
poultry facility; and
(4) the number of tons of poultry litter removed.
(b) A person that purchases or obtains poultry litter for
land application must maintain until the second anniversary of the
date of application a signed and dated proof of delivery document
for every load of poultry litter applied to land. The landowner or
the owner's tenant or agent shall note on the document the date or
dates on which the poultry litter was applied to land.
(c) Subsection (b) does not apply to poultry litter that is:
(1) taken to a composting facility;
(2) used as a bio-fuel;
(3) used in a bio-gasification process; or
(4) otherwise beneficially used without being applied
to land.
Sec. 26.305. INSPECTION OF RECORDS. The commission may
inspect any record required to be maintained under this subchapter.
SECTION 4. Section 5.1175, Water Code, is amended to read as
follows:
Sec. 5.1175. PAYMENT OF PENALTY BY INSTALLMENT. (a) The
commission by rule may [shall] allow a person who [small business
that] owes a monetary civil or administrative penalty imposed for a
violation of law within the commission's jurisdiction or for a
violation of a license, permit, or order issued or rule adopted by
the commission to pay the penalty in periodic installments. The
rule must provide a procedure for a person [qualified small
business] to apply for permission to pay the penalty over time.
(b) [The rule must classify small businesses by their net
annual receipts and number of employees. A business that is a
wholly owned subsidiary of a corporation may not qualify as a small
business under this section.
[(c)] The rule may vary the period over which the penalty
may be paid or the amount of the periodic installments according to
the amount of the penalty owed and the size of the business that
owes the penalty. The period over which the penalty may be paid may
not exceed 36 [12] months.
SECTION 5. Section 7.002, Water Code, is amended to read as
follows:
Sec. 7.002. ENFORCEMENT AUTHORITY. The commission may
initiate an action under this chapter to enforce provisions of this
code and the Health and Safety Code within the commission's
jurisdiction as provided by Section 5.013 of this code and rules
adopted under those provisions. The commission or the executive
director may institute legal proceedings to compel compliance with
the relevant provisions of this code and the Health and Safety Code
and rules, orders, permits, or other decisions of the commission.
The commission may delegate to the executive director the authority
to issue an administrative order, including an administrative order
that assesses penalties or orders corrective measures, to ensure
compliance with the provisions of this code and the Health and
Safety Code within the commission's jurisdiction as provided by
Section 5.013 of this code and rules adopted under those
provisions.
SECTION 6. Subsection (h), Section 26.0135, Water Code, is
amended to read as follows:
(h) The commission shall apportion, assess, and recover the
reasonable costs of administering the water quality management
programs under this section [from users of water and wastewater
permit holders in the watershed according to the records of the
commission generally in proportion to their right, through permit
or contract, to use water from and discharge wastewater in the
watershed]. Irrigation water rights, non-priority hydroelectric
rights of a water right holder that owns or operates privately owned
facilities that collectively have a capacity of less than two
megawatts, and water rights held in the Texas Water Trust for terms
of at least 20 years will not be subject to this assessment. The
cost to river authorities and others to conduct water quality
monitoring and assessment shall be subject to prior review and
approval by the commission as to methods of allocation and total
amount to be recovered. The commission shall adopt rules to
supervise and implement the water quality monitoring, assessment,
and associated costs. The rules shall ensure that water users and
wastewater dischargers do not pay excessive amounts, [that program
funds are equitably apportioned among basins,] that a river
authority may recover no more than the actual costs of
administering the water quality management programs called for in
this section, and that no municipality shall be assessed cost for
any efforts that duplicate water quality management activities
described in Section 26.177. [The rules concerning the
apportionment and assessment of reasonable costs shall provide for
a recovery of not more than $5,000,000 annually. Costs recovered by
the commission are to be deposited to the credit of the water
resource management account and may be used only to accomplish the
purposes of this section. The commission may apply not more than 10
percent of the costs recovered annually toward the commission's
overhead costs for the administration of this section and the
implementation of regional water quality assessments. The
commission, with the assistance and input of each river authority,
shall file a written report accounting for the costs recovered
under this section with the governor, the lieutenant governor, and
the speaker of the house of representatives on or before December 1
of each even-numbered year.]
SECTION 7. The change in law made by Subsection (e), Section
382.068, Health and Safety Code, as added by this Act, applies only
to an owner or operator of a poultry facility the construction of
which begins on or after the effective date of this Act. An owner or
operator of a poultry facility the construction of which began
before the effective date of this Act is governed by the law in
effect at the time the construction of the facility began, and the
former law is continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1693 passed the Senate on
April 24, 2009, by the following vote: Yeas 30, Nays 0; and that
the Senate concurred in House amendments on May 30, 2009, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1693 passed the House, with
amendments, on May 26, 2009, by the following vote: Yeas 145,
Nays 0, two present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor